Portu v. City of Coral Gables, Johns E. Co.

239 So. 3d 1295

Opinion

Per Curiam.

Peter Portu appeals the workers' compensation order denying attorney's fees and costs. We reverse as to attorney's fees. We affirm as to costs because Portu did not preserve his claim for appeal.

Section 440.34(3), Florida Statutes (2009), entitles a claimant to attorney's fees when the "carrier files a response to petition denying benefits"; the claimant has a "successful prosecution of the petition"; and thirty days elapse from "the date the carrier ... receives the petition." Franco v. SCI at Palmer Club at Prestancia , 989 So.2d 709, 710 (Fla. 1st DCA 2008) (quoting statute). Each of those factors is present here. The fact that the petition sought a higher impairment rating than the employer eventually agreed to does not change the statutory factors. On remand, the judge of compensation claims must award fees.

AFFIRMED in part; REVERSED in part.

Kelsey, Winokur, and Winsor, JJ., concur.